United States District Court, S.D. Illinois
MEMORANDUM & ORDER
GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE
Plaintiff
Bailey Reed, who was a student at Southern Illinois
University at Edwardsville in 2017, alleges that Defendants
Southern Illinois University d/b/a Southern Illinois
University at Edwardsville (“SIUE”), Randall
Pembrook, Ashley Cox, Kara Shustrin and Chad Martinez engaged
in a course of gender discrimination and violated her
constitutional rights after Reed was sexually assaulted by
another student. Before the Court is a motion to dismiss
filed by Defendant Ashley Cox (Doc. 9). For the reasons
delineated below, the Court denies Defendant Cox’s
motion.
Factual
Allegations
In her
complaint, Plaintiff Bailey Reed alleges that she was a
student at Southern Illinois University at Edwardsville in
October 2017, living in campus housing. Throughout the month
of October, she and another SIUE student exchanged friendly
and “flirty” messages. She liked the other
student. At one point, the other student sent Reed a text and
asked, “Do you find me trustworthy?” She replied,
“From what I know, Absolutely.” He then asked,
“Do you think I’m respectful?” Reed
replied, “From what I know, I think you’re a
great guy.” About a day or so after the exchange, the
student asked Reed via online communication what she was
doing, and she replied that she was getting ready to meet a
friend. The student responded that he was coming over to her
on-campus apartment. Reed alleges that she did not invite him
over, but she did not protest because she liked him.
Reed
signed the student into her building, allowing him to come to
her apartment. Once there, he grabbed her by the hand and
pulled her onto his lap. Reed was uncomfortable and tried to
pull herself away. The student began kissing her, and she
kissed him back. She quickly told him, however, that she did
not want to have sex. He ignored her and picked her up and
threw her onto her bed. He proceeded to sexually assault her
despite Reed repeatedly telling him “no” and
crying. The student repeatedly told her, “It’s
fine.” Later that night, after discussing it with a
friend and with her mother, Reed went to Anderson Hospital to
report that she had been raped.
At the
hospital, a woman entered Reed’s room and told her that
she worked for a non-profit rape crisis center named Call for
Help and that another Call for Help employee, Defendant
Ashley Cox, who worked with all SIUE students who were
sexually assaulted, would be in touch. Reed was scared and
traumatized when she received the call from Cox. Cox
allegedly told Reed that she worked for Call for Help and
that their conversations were confidential. Cox failed to
reveal that she had become an employee of SIUE approximately
four months earlier. Cox told Reed that she did not have to
report the rape, but Reed decided she wanted to and went to
the SIUE police department. Cox met her there.
At the
police department, Cox and Reed spoke privately, and Cox
asked Reed how she wanted to proceed. Reed said that she
wanted to report the rape and that she wanted to move from
her on-campus apartment. Cox then briefly described the Title
IX process, allegedly emphasizing how difficult it, and the
criminal process, would be. She asked if Reed was sure she
wanted to report the assault, and Reed confirmed that she
wanted to report it to both the Title IX Office and to the
police.
After
the conversation, Reed’s mother, in front of Reed, told
Cox that she was concerned about Reed remaining in the
apartment where she had been assaulted, and Cox replied
sternly that there was nothing that could be done. Cox then
told Reed that she would inform SIUE’s Title IX office
that Reed wanted to report a sexual assault and that someone
from the office would contact her within a few days. When no
one from the office called, Reed’s mother tried to
reach out to Cox, but Cox did not return her calls.
Reed’s
mother reached out to the Title IX office directly, but she
did not receive a response until she left a message
threatening to contact a Dean. At that point, she was told
that the entire office was out and that it would be a week or
more before someone was available to meet with the family.
Reed’s mother demanded quicker action, and a meeting
eventually was scheduled.
Reed
and her family first met with Defendant Kara Shustrin, an
Associate Dean, who said that the Title IX Office was aware
of the assault but that Cox told them that Reed did not want
to make a report. Reed told her that she did want to make a
report, and Shustrin and Defendant Chad Martinez, the Title
IX Coordinator, offered Cox as a support contact and liaison
for the Title IX process. Reed declined the offer of
Cox’s assistance. Reed alleges that she and her counsel
did not learn of Cox’s status as an SIUE employee until
September 2018 through online research, and she alleges that
Cox discouraged her from reporting her sexual assault and
failed to start the Title IX process, despite Reed’s
stated desire to proceed.
The
Title IX Office proceeded to investigate Reed’s
complaint. Nearly 100 days after she reported her sexual
assault, Defendant Martinez ruled in favor of her attacker.
The decision offered five findings in support: (1) Reed liked
and wanted to spend time with her attacker before the
assault; (2) Reed enjoyed attention from him and had been
“flirty” before the assault; (3) Reed
didn’t act the way Martinez believed a rape victim
should act following a rape; (4) Reed had her timeline of
sexual acts and communications confused, undermining her
credibility; and (5) Martinez found the sexual positions of
the assault as described by Reed difficult to
“envision.” Reed appealed the decision to the
Sexual Harassment Panel, which found in her favor. Defendant
Randall Pembrook, the Chancellor, however, overturned the
panel’s decision in April 2018, and the Board of
Trustee’s refused Reed’s appeal on procedural
grounds in September 2018.
In
Count IV, Reed alleges that Cox, along with all Defendants,
violated her Fourteenth Amendment right as a public
university student to personal security, bodily integrity and
equal protection under the law. They did so by failing to
investigate her attacker’s misconduct, by failing to
discipline him, by failing to adequately train and supervise
Pembrook, Cox, Shustrin and Martinez, and by manifesting
deliberate indifference to the sexual assault and ongoing
harassment of Reed. Reed alleges that Cox was both a
policymaker and a state actor for purposes of implementing
SIUE’s unconstitutional policies and customs.
Legal
Standard
A
complaint must include enough factual content to give the
opposing party notice of what the claim is and the grounds
upon which it rests. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 698 (2009). To satisfy the
notice-pleading standard of Rule 8, a complaint must provide
a “short and plain statement of the claim showing that
the pleader is entitled to relief” in a manner that
provides the defendant with “fair notice” of the
claim and its basis. Erickson v. Pardus, 551 U.S.
89, 93 (2007)(citing Twombly, 550 U.S. at 555 and
quoting Fed. R. Civ. Proc. 8(a)(2)). In ruling on a motion to
dismiss for failure to state a claim, a court must
“examine whether the allegations in the complaint state
a ‘plausible’ claim for relief.” Arnett
v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)(citing
Iqbal, 556 U.S. ...